ULP Submissions To The Parliamentary Select Committee To Scrutinise The Constitution Of Zambia Amendment Bill No. 10 Of 2019

The united liberal party would like to thank the chairman of the select committee and the committee for according the party an opportunity to submit a memorandum on ramifications of the proposed amendments.

We wish from the onset to state that the united liberal party and its membership are in full support of the constitution of Zambia amendment bill no. 10 of 2019.

We believe the bill is very propgressive in dealing with various concerns such as wasting public resources through unnecessary by-elections, political violence and gender equity that have been raised by several stakeholders regarding the governance of the country and particularly on how we conduct our elections.

We also wish to emphasize that the ULP respects the views of other stakeholders who have raised concerns on the bill and it is our position that our presentation to the select committee will help clear the fears raised on the bill.

We will focus on the following proposed amendments:

1. Concerns Raised By A Few Stakeholders On The Proposed Introduction Of Mixed Member System Of Electing Members Of Parliament Under (P) Article 47(2)

Our position as a party is that this will address the independence old problem of equal representation in the National Assembly between men, women, young people and persons with disabilities.

It is a known fact that the National Assembly has been dominated by men ever since its first sitting. And this proposed article is designed to ensure fair representation of all categories of our society in parliament.

The NDF resolutions to introduce a mixed-member system under proportional representation to ensure political parties have an opportunity to include women and youth in the selection of Members of Parliament.

2. Fears By A Few Stakeholders That Amendments To Article 144 On The Removal Of A Judge Will Dilute The Independence Of The Judiciary

Article 144(1) of the constitution states that, “The removal of Judge may be initiated by the Judicial Complaints Commission, or by a complaint presented to the Judicial Complaints Commission based on the grounds specified in Article 143.

The proposed amendments to Article 144(1) states that, “The removal of Judge may be initiated by the Judicial Service Commission.”

The contention by some stakeholders is that the proposed change in the institution that handles the removal of Judges will lead to dilution of independence of the Judiciary.
The position of the party is that this does not dilute the independence of the judiciary but will enhance independence of the judiciary, especially that the same institution responsible for the welfare of the judiciary will also be responsible for holding Judges accountable of their actions or omissions.

It is also standard practice among commonwealth countries from which we derive most of our practice that the Judicial Service Commission is responsible for initiating removal of Judge.
It is also standard practice among other public commissions in Zambia such as the Police and Prisons Service Commission and the Public Service Commission despite have complaints bodies (Police Complaints Authority), The Police and Prisons Service Commission is responsible for initiating removal of a Police officer or Prisons/Correctional Services officer.

3. Fears By A Few Stakeholders That The Words “AS May Be Prescribed By Parliament” In Various Articles Of The Bill Means Increasing The Powers Of The Executive?

The party position is that this actually gives power to the National Assembly to come up with legislation that protects the integrity of the Constitution and ensures that none of the three arms of government will act arbitrary in executing its functions.
Allowing Parliament to decide on how various public institutions conduct affairs including the courts will not any anyway transfer power from the National Assembly to the President?

4. Another Contentious Issue Consitently Referenced By A Few Stakeholders Has Been The Number Of Days In Which The Constitution Court Could Hear A Presidential Petition.

The NDF resolved to extend from 14 days to 30 the number of days in which the constitutional court can hear a presidential petition.

The proposed amendment in Article 103(2) states that, “The Constitution Court shall hear and determine an election petition filed in accordance with clause (1) within thirty days of the filing of the petition.

The party believes this is adequate time in which to determine the presidential petition.

5. The Other Matter Of Contention By A Few Stakeholders Is The Election Of Mayors And Chairpersons; Some Stakeholders Contend That It Would Be Undemocratic To Reintroduce Of The Election Of Mayors And Council Chairpersons By Councillors.

The current constitution in Article 154 (2) (a) states that, “A Mayor and Council Chairperson shall be elected – (a) directly in accordance with 47(3) during elections for councilors, as prescribed;
The proposed amendments in Article 154(2) (a) states that, “A Mayor and deputy Mayor or Council Chairperson and a deputy Council Chairperson shall be elected – (a) by councilors among themselves, as prescribed;

The party believes this amendment is necessary to stop the wastage of public resources of electing Mayors and Council Chairpersons by public ballot because the general public would have participated in the elections through their councilors. This proposal also reduces the risk of political violence which accompanies most by-elections.

We should as a country also look at those with whom we share common democratic values such as the United Kingdom whose democratic credentials are among the most respected in the world.

Each time a vacancy has occurred in the office of prime minister of the United Kingdom, the new prime minister has been elected only by members of the party from which the previous prime minister was elected. This is true with Mr. Boris Johnson the current Prime Minister of the United Kingdom.

When Mrs. Theresa May resigned from the position of Prime Minister of the UK, it was the Conservative Party only that was given the opportunity to elect the current prime minister.

We should bear in mind that the Prime Minister of the UK has more responsibilities to govern a country as compared to the Mayor of Lusaka even the Mayor of London and yet to find a replacement only slight over one hundred thousand members of the ruling conservative party were involved in electing the prime minister.

6. The Other Article Which Has Caused Concern By A Few Stakeholders Is The Forming Of A Coalition Government By A Presidential Candidate Who Has Acquired More Votes Than Other Presidential Candidates But Has Not Received More Than Fifty Percent Of The Valid Votes.

Article 101 (3) (a) of the current constitution state that, “if at the initial ballot a presidential candidate does not receive more than 50 percent of the valid votes cast, a second ballot shall be held with thirty-seven days of the initial ballot, where the only candidates shall be the presidential candidates who obtained-

(a) The highest and second highest number of valid votes cast in the initial ballot;

The proposed amended Article 101 (3) (a) states that, “if at the initial ballot a presidential candidate does not receive more than fifty percent of the valid votes cast,

The candidate with the high number of votes cast shall, within fourteen days of the declaration by the Retaining Officer of presidential election results negotiate and form a coalition government with a presidential candidate that participated in the initial ballot, except that the combined votes of that presidential candidate and the preferred presidential candidate forming the coalition government meet the threshold of more than fifty percent of the valid votes cast.

This the party believes sums up aspirations of the majority of the Zambia population, that is to say reduced presidential by-elections violence, stop or avoid costly by elections and enhance the spirit of dialogue among political players in Zambia.

Conclusion:

There are several provisions that everyone agrees with as being positive and likely to bring happiness. It surprises us that some people say we should postpone everything in the Bill even though they acknowledge that a good number of the provisions will bring happiness.

Let us not forget the wise saying from American entrepreneur, author and motivational speaker, Jim Rohn who said, “Happiness is not something you postpone for the future, it is something that you design for the present.”

A number of things in this bill will bring happiness today that we should not postpone to the future. There are a few examples we wish to give.

Why should we postpone the happiness that would be brought with the savings we would make from not having mayoral bye elections?

Why should we postpone the happiness that we would get from a lesser campaign period to shorten the tensions and disruptions campaigns bring?

Why should we postpone the happiness that a reasonable time for disposal of presidential election petitions in the court would bring?

Why should we postpone the happiness that would come with greater women representation in Parliament by a proportional representation system with gender quotas?

Why should we postpone the happiness that would come with greater youth and other marginalized groups representation in Parliament by a proportional representation system with youth and marginalized groups quotas?

Why should we postpone the happiness that greater and more inclusive participation in the affairs of governance by provision for coalition government?

Some people say that coalition governments should only be used in a parliamentary rather than a presidential system of governance. The first things the proponents for this argument forget is that our political system is neither purely parliamentary or presidential. Ours is a mixture or blending of presidential and parliamentary system. You cannot therefore place our system completely into either the “presidential system box” or the “parliamentary system box”

The second thing that the proponents of the fit it into the “presidential system box” or the “parliamentary system box” forget are the wise words of an American motivational speaker who pointed out that, “We are trapped in our own patterns and we are our own worst enemies. Yesterday’s presumptions shape your attitudes today and tomorrow.” This in itself limits us.

We have had several constitutional changes and these always seem to come to naught. This is because we have not heeded what Einstein stated thus, “You cannot solve a problem with the same thought process that was part of creating the problem.” This means that if you want to change the system you have to have a solution from outside the system because anything within the system is part of the system.

This means you have to think outside the box. Be it the presidential or parliamentary system box. Thinking outside the box is metaphor for thinking unconventionally, in a totally different manner, or from an innovative perspective. This entails novel or creative thinking.

Some people say, “Instead of thinking outside the box; get rid of the box.” We do not need to place ourselves into the two boxes of “parliamentary system box” and “presidential system box”. If thinking outside the box is good, then thinking outside two boxes is doubly good. Think outside the two boxes or get rid of them.

In short, The United Liberal Party believes Bill No. 10 of 2019 will help lessen electoral violence, increase participation of women, youth and persons with disabilities in the governance of the country. The Bill will also enhance accountability and reduce wastage of public resources.

By Dickson Jere

Judge Yvonne Chembe of Ndola High Court has come under unfair attack.

Many strongly believe that the 10 years jail sentence she slapped on a young girl of Ndola for “smoking weed” was harsh. Others are even comparing her case to those who have walked away with a 5 year jail term for killing (manslaughter), which appears to be a serious offence than “smoking weed”.

But those attacking the Judge are missing a crucial point. She was legally right to slap the girl with 10 years jail sentence.

Here are my reasons:

Firstly, the young girl was not sentenced for “smoking” marijuana but “trafficking”. This is how the law works in Zambia. When you are caught with marijuana below 0.5 grams – you can successfully argue that it was for consumption.

However, by law anything above 0.5 grams is regarded as trafficking. So prosecutors don’t have to prove that you were selling but rather that you had quantities above 0.5 grams. That’s it. That is the law as promulgated by Parliament. Judges are supposed to merely follow the law!

Secondly, Parliament, in its wisdom passed a law that says when you are a second offender for drug-related cases, you are supposed to be jailed for a mandatory sentence of 10 years. Judges cannot go against this provision as it is the law for the time being under Section 44 of Narcotic Drugs and Psychotropic Substances Act.

So before we throw stones on a poor Judge, try to understand the law. Don’t blame the Judiciary but Parliament!

It reads; ” Any person convicted on a second or subsequent offense for trafficking shall be liable to imprisonment for a term of not less than ten years”. The law is precise.

Now let’s get to the Ndola girl.

She was convicted for “trafficking” and not “smoking” as it has wrongly been presented to the public. I understand she had 17 grams of marijuana which is way over the 0.5 grams. She is a second offender – meaning she had served jail before for drug-related offense. So what did you expect the Judge to do?

Simply put, Judge Chembe was under the legal obligation to apply the law as it is and sentence her to 10 years! If the Judge ever tried to reduce the sentence, she would have committed misconduct.

So before we throw stones on a poor Judge, try to understand the law. Don’t blame the Judiciary but Parliament!

Those with strong views about this law should lobby parliament to make amendments and allow Judges to have discretion on such cases.

In short, the Judge interpreted the law when she slapped a 10 years jail sentence. That is the law. Those not agreeing with the interpretation can appeal.